Gowers Review

The Gowers Review, commissioned by the government to look at intellectual property law in the United Kingdom, published its final report today. It was commissioned by the Chancellor of the Exchequer Gordon Brown MP so it is expected that the report will hold a lot of weight and that its recommendations will be followed. We are delighted to see an evidence-based approach to reviewing Intellectual Property, and welcome many of the recommendations he makes, some of which we actively lobbied for. The report is 142 pages long so if you don't have time to read it all, here are some points of interest. (This expands on our earlier press release).

No extension of copyright term

The music industry lobbied hard to extend the term of copyright for audio recordings. As regular readers will know, we lobbied hard against this happening, and we would like to thank every one who helped us on this as the report recommends that the term of copyright protection for sound recordings remain at 50 years. There is no doubt that this is the right decision - it is supported by all the evidence. But the Government must stand firm in the face of renewed industry attempts to marginalise the Gowers Review.

Matt Black, DJ and one half of Coldcut, said:

"The only people to benefit from term extension would be the giant traditional media groups - artists would actually benefit more from letting music enter the public domain. Extending copyright term for past works amounts to revising the deals made with artists without their consent. Who would sign a deal for a term of '50 years or however long we want to make it by lobbying to get the law changed'?

"The conclusion of the Gowers review that copyright term should not be extended is the correct one; we should not follow the lead of the US who have submitted to corporate demands by Big Media. Here we can recognise that music is a key part of our culture, (and, indeed, a key export), that recycling is a natural part of musical creativity and that not extending the existing copyright term will promote the creation of UK music."

Exceptions to copyright

Calls for additional exemptions to copyright law for "creative, transformative* or derivative works" and for "caricature, parody or pastiche" will be important to both artists and the public alike. We are pleased to hear that libraries will be supported in their preservation work and will be allowed to copy and reformat copyrighted material, including film and sound recordings. This is essential to the health of our cultural heritage and we are delighted that the Chancellor has recognised its importance.

A private copying exception

A recommendation that private users be allowed to copy music from a CD to their MP3 player. When ever I mention this is a conversation I normally get a wonderfully confused look followed by the comment "What, I thought that was legal." It still currently not legal in the UK, that is until this recommendation if followed and the law is amended.

Back in February when the Open Rights Group was presenting evidence to the All Party Internet Group, Ian Brown said

I am always astonished when I speak at events like this that it is only a small number of lawyers who know copyright law who even realise there is not a private copy exemption in British law. I am sure if you went home and talked to friends and family very few would realise they were breaking copyright law by making copies of their own CDs, for example.

Look into orphan works

The term ‘orphan work’ is used to describe a situation where the owner of a copyright work cannot be identified by someone else who wishes to use the work. Estimates suggest that only 2 per cent of all works that are protected by copyright are commercially available. In 1930, 10,027 books were published in the USA, but by 2001 all but 174 were out of print.77 The British Library estimates 40 per cent of all print works are orphan works.

Recommendation 13: Propose a provision for orphan works to the European Commission, amending Directive 2001/29/EC.

No expansion of software patents

The Review supports the current position on pure software patents, business method patents and gene patents, highlighting the considerable costs and the negative effects that the USA has experienced where multiple owners each have a right to exclude others, and no-one in effect has the right to develop anything.

Recommendation 17: Maintain policy of not extending patent rights beyond their present limits within the areas of software, business methods and genes.

The possibility of a labelling convention for DRM

This follows on from the All Party Internet Groups recommendations. The logic behind it is simple, let the market decide if it wants DRM or not, the market only works when the customers know what they are buying, so if there was a simple labelling system for DRM that informed the users that a product has DRM and what restrictions that DRM will enforce, customers can make informed decisions. This will be a very effective way of discouraging DRM. In the event that companies use DRM to create market power, damage users’ software or invade their privacy, the Review recommends that the Office of Fair Trading undertakes investigations.

Recommendation 16: DTI should investigate the possibility of providing consumer guidance on DRM systems through a labelling convention without imposing unnecessary regulatory burdens.

Easier methods for complaints relating to DRM

DRM often prevents legitimate uses users from doing perfectly legal things. This often means that DRM breaks UK law. For example, the Royal National Institute for the Blind note that Adobe eBooks usually have ‘accessibility’ settings disabled. This prevents the visually impaired exercising their rights to make copies in accordance with the exceptions introduced by the Copyright (Visually Impaired Persons) Act 2002.85 Such exceptions ought to be respected by technology.

In theory any user could make a complaint but as there is no easy way to do so. The Review recommends that the procedures in place for circumventing DRM to allow copying for uses deemed legitimate under copyright exceptions ought to be made easier.

Recommendation 15: Make it easier for users to file notice of complaints procedures relating to Digital Rights Management tools by providing an accessible web interface on the Patent Office website by 2008.

Stronger enforcement of IP law

This review is the most important critique of intellectual property in the UK of recent years, and we are delighted to see that the majority of its recommendations are sensible and constructive. We welcome the Chancellor's commitment to tackling counterfeiting and piracy. However, we are concerned that the report seems to make no distinction between large-scale commercial counterfeiting, and small-scale non-commercial acts carried out by individuals. Too often these vastly different acts are conflated by the music industry, and the drafters of any new intellectual property law must make the difference clear to both the courts and the rights holders.

We are concerned that without this clarification, this report will give a green light to the record industry to continue to pursue frivolous court cases. If the police become involved in infringement investigations, as recommended by the Gowers Review, there is a risk that their resources would be diverted from tackling serious crime by an over-enthusiastic music industry keen to prosecute grannies and children for file sharing.

We would urge the Chancellor and to commission an independent study into file sharing, as it is clear that much more research is needed in order to determine how file sharing should be treated legally. Impartial evidence must form the foundation for policy in this area, rather than biased and unreliable information provided by interested parties.

Fast track registration for trade marks

By allowing trademarks to be fast-tracked, Gowers is adopting a more web-like process of comment and review to take place. Taking this together with the recommendation for a Community Patent Review pilot, Gowers is moving some way towards a web-like model of knowledge creation.

Recommendation 25b: The Patent Office should conduct a pilot of Beth Noveck’s Community Patent Review in 2007 in the UK to determine whether this would have a positive impact on the quality of the patent stock.

The Review proposes that a fast track system (in addition to the normal system) should be available to allow for trade marks to be examined and accepted within 10 days of the application being filed. Once the application is accepted it can be published and thereafter the 3-month opposition period would begin. This fast track system should be accompanied by a higher fee.

[...] I will be moving to a position on the ORG Board, from where I hope to do a lot more blogging and policy writing, and can help Becky steer ORG through what are some really complicated waters. The last year and a half has been an astonishing success - I don’t think any of us thought that ORG would have as much influence now as it has shown in the past weeks with the Gowers Review, and I am very proud of what we have achieved. [...]

[...] beat back the music industry’s lobbying for copyright term extension in the UK (yawn, done it). Not even make sure Britain was safe for knitted Dr Who monsters everywhere (well, you get the [...]

There has been a lot of rather one-sided coverage on the radio, particularly in 6 Music news, where people in favour of the extension have been talking without anyone from the ORG or similar to put the other side. Do the BBC not contact the ORG, or has the ORG not managed to get word of its existence our effectively?

We sent the press release to quite a number of BBC journalists, and indeed one person from the website even rang me Wednesday morning, prior to the report, to set up an interview. She never rang back, though. Many other sources quoted us and I know that BBC journalists do tend to keep an eye on sources like the Guardian, so I doubt very much that they would have been unable to find us had they wanted an alternative voice.

It was commissioned by the Chancellor of the Exchequer Gordon Brown MP so it is expected that the report will hold a lot of weight

Pure brilliance, you can't write that stuff.

On a more serious front the report does seam to be quite sensible, which for a report is quite remarkable. The only one I don't see eye to eye with is the stronger enforcement for the same reasons you have listed.

[...] Ok, so the penalties won’t be that harsh, but a BBC article I found talks about copyright laws in the UK. It notes that digital pirates should face some tougher penalties, but also that a balance needs to be created, for example, one that allows for users to takes music from CDs to convert them to MP3s. It is interesting to note that film piracy is creating the biggest problem in the UK and that its costing many jobs (and a lot of revenue) in that country. The Open Rights Group blog posts more information about the Gowers Review which talks about intellectual property law in the UK. Check it out if you have a chance… its rather informative. Add this post to your Facebook account (or just save it to a boomarking site)These icons link to social bookmarking sites where readers can share and discover new web pages. [...]

[...] So far I’ve only read the summary from ORG, and comments from Lawrence Lessig. The recommendations seem surprisingly sensible, given that recent media coverage of it was ‘music industry’ lobbying to extend copyright (for existing works). [...]

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